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“Driving” Under the Influence: It doesn’t mean what you think it means.


Caryn J. Adams
Managing Attorney
The Gasper Law Group

There are few movies more quotable than The Princess Bride (Hmm, maybe The Godfather, but that’s a different blog). Mandy Patinkin as the master swordsman Inigo Montoya gets one of my favorites when he responds to his employer, “You keep using that word. I do not think it means what you think it means.” In the movie, the word in question is “inconceivable.” In Colorado, that word is “driving.”
“Driving,” as in “Driving” Under the Influence or “Driving” While Ability Impaired, does not mean what you think it means. Consider the following situation. You’re out on the town and have had too much to drink. You know you can’t drive home and want to do the right thing. You decide to walk a block to the parking lot and sleep it off in your car. You get in the driver’s side, recline the seat, and put your car keys in your pocket. An hour later you’re woken up by a patrol officer rapping on your window. “Bad news,” he says, “You’re under arrest for Driving Under the Influence.” In fact, even though you didn’t know it and common sense would say otherwise, and even though the car was never turned on and never moved an inch, you’ve been “driving” for the past hour.

In Colorado, the courts have determined that the terms “drive” and “drove” include “actual physical control” of a vehicle, even if the vehicle is not actually moving. Factors a judge or jury may consider in deciding whether or not a person was in actual physical control of a motor vehicle, include, but are not limited to the following:
A. Where the vehicle was found;
B. Where in the vehicle the person was found;
C. Whether or not the keys were in the motor vehicle’s ignition;
D. Whether or not the motor vehicle was running;
E. Any other factor which tends to indicate that the person exercised bodily influence or direction over a motor vehicle or not based on your everyday experience.

As a result, the law books are filled with the stories of those convicted of “driving” while asleep. Robert Swain was convicted in 1995 after a trooper found him curled up on the front seat of his car (feet by the driver’s door, head by the passenger’s door) with the keys in the ignition and the radio playing. His engine was not running. Hugh Brewer slept through his “driving” in 1983 after a citizen complained that there was a car in her cul-de-sac with its engine running. No one ever saw Brewer’s car move. In 2004 Jackie VanMatre was the passenger in a car that both ran out of gas and wound up with a dead battery. The driver of the car left to get jumper cables, and while he was gone the police arrived on scene and found Mr. VanMatre sitting in the driver’s seat, drinking a beer. He was convicted of “driving” despite the empty gas tank and dead battery.

So what do you do? There are a number of ways to make it less likely you’ll be arrested for driving in your sleep. Don’t get in the driver’s seat. In fact, don’t get in the passenger’s seat either. Sleep in the backseat. Don’t put the keys in the ignition, even if you’re just turning on the radio or the heater (hopefully, you have a blanket in the trunk). Don’t put the keys in your pocket. You want to be as far from your car keys as possible in this situation. Of course, none of this guarantees you won’t be arrested or charged with “Driving” Under the Influence, and defense attorneys like to trade stories about this man or that woman arrested while sleeping in the backseat with the engine off and the keys in the glove box. (Yes, it does happen).

If you are looking for legal representation in a DUI case, we can help you. Gasper Law Group is a criminal defense firm in Colorado Springs with a team of dedicated DUI attorneys experienced in criminal law. Contact us to get in touch with a Gasper Law representative.

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